Ohio Valley Environmental Coalition v. Hurst

MEMORANDUM OPINION AND ORDER

This case involves several environmental groups’ challenge to the Army Corps of Engineers’ (“Corps”) decision to issue a nationwide permit, NWP 21, authorizing the discharge of dredged and fill material associated with surface coal mining activities, which includes mountaintop mining. Under this controversial method of mining, coal seams running through the upper fraction of a mountain, ridge, or hill are reached by blasting and removing each *868 layer of rock above the seam. The mountain is demolished layer by layer as each layer of rock and coal is removed until the cost of proceeding exceeds the value of the remaining coal. During this process, the removed rock is placed in adjacent valleys and, once the coal is extracted, replaced in an attempt to recreate the contour of the mountain. See Bragg v. W. Va. Coal Assoc., 248 F.3d 275, 286 (4th Cir.2001). This dirt and rock, called overburden or spoil, “swells” or increases in size by as much as 25%, creating excess material not needed to rebuild the mountain. Id. As Judge Haden explained, “[t]he overburden ... is disposed of by creating valley fills, that is, literally, filling the valleys with waste rock and dirt.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh (“Rivenburgh I”), 204 F.Supp.2d 927, 929-30 (S.D.W.Va.2002). These valley fills permanently eliminate previously existing valley streams. In the past twenty years, thousands of miles of streams in Appalachia, constituting over 2% of the streams in the area, have been impacted by the discharges associated with mountaintop mining. Draft Programmatic Environmental Impact Statement at III.D-2 (2003) (“DPEIS”). In West Virginia alone, over 200 miles of streams have been permanently lost. DPEIS at III.K-49.

The Corps indirectly manages this process through a nationwide permitting process. A nationwide discharge permit authorizes discharges from all activities, nationwide, within an identified category. A complex statutory framework under-girds and constrains the Corps’ decision to issue a nationwide permit. Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344, for instance, requires the Corps to determine that the activities in the authorized category would only have minimal environmental impacts, both individually and cumulatively. Another statute, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), requires the Corps to take a “hard look” at the environmental impacts of a project and prepare an environmental impact statement before issuing a nationwide permit unless it determines that the activities authorized by the permit will only result in insignificant environmental impacts.

In the course of issuing NWP 21 in the year 2007, the Corps determined, as required by CWA, that the activities authorized by that permit would only have minimal cumulative environmental impacts. The Corps also decided not to prepare an environmental impact statement, as required by NEPA, because it determined that the permitted activities would not result in significant environmental impacts. I FIND that these determinations were arbitrary and capricious under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706 for the following reasons.

First, the Corps’ NEPA analysis did not include a consideration of the ongoing impacts of past actions, are part of NWP 21’s cumulative impacts. Second, both the Corps’ NEPA and CWA cumulative impacts determinations relied on the success of a mitigation process to minimize the cumulative impacts of NWP 21, but the Corps did not provide a rational explanation for its reliance. The Corps also provided no evidence that the mitigation process would be successful or adequately enforced. Accordingly, the Corps’ determinations were unsupported by the administrative record and were arbitrary and capricious. NWP 21 (2007) is VACATED and REMANDED to the Corps for further proceedings.

I. Background

This case is one in a long line of lawsuits initiated by environmentalists against the coal industry and governmental regulators challenging practices and permit decisions *869 related to mountaintop mining, or surface coal mining, in Southern Appalachia. 1 As I have stated, those challenges arise from the detrimental impact those methods of mining have on the valley streams. As Judge Haden explained in greater detail:

The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream there is no water quality.-

Bragg v. Robertson, 72 F.Supp.2d 642, 661-62 (S.D.W.Va.1999), aff'd in part, vacated in part, 248 F.3d 275 (4th Cir.2001).

The Corps, the defendant in this suit, 2 indirectly regulates the mountaintop mining industry via § 404 of CWA. This case involves a challenge to the Corps’ evaluation of the environmental impacts associated with a specific § 404 nationwide permit: NWP21.

A. Statutory Framework

As I have stated, in order to issue a permit authorizing valley fill, the Corps must satisfy the requirements of two statutes: CWA and NEPA. The purpose of CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). CWA authorizes the Secretary of the Army, acting through the Corps, to regulate discharges of dredged and fill material into the waters of the United States by issuing either individual or general permits. 33 U.S.C. § 1344. Individual permits for the discharge of dredged or fill material from specific disposal sites are authorized on a case-by-case basis pursuant to § 404(a). The issuance of an individual permit requires extensive individual review, notice, and an opportunity for public hearing. 33 U.S.C. § 1344(a); 40 C.F.R. § 230.5.

Unlike individual permits that only authorize discharges from a specific site, general permits are issued on a state, regional, or nationwide basis. 33 U.S.C. § 1344(e). Pursuant to CWA § 404(e), general permits authorize the discharge of dredged or fill material for an entire category of activities. 33 U.S.C. § 1344(e). The purpose of § 404(e)’s general permits is to reduce administrative paperwork and delay and, according to the Corps, to permit the agency to “authorize minor activities that are usually not controversial and would result in little or no public or re *870 source agency comment if they were reviewed through the standard permit process.” Final Notice, 67 Fed. Reg. 2020, 2022 (Jan. 15, 2002). CWA requires that the Corps determine, before issuing a general permit, that “the activities in [the general permit’s] category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). Further, like individual permits, general permits may only be issued after the Corps provides notice and an opportunity for public hearing. 13 U.S.C. § 1344(e). The general permits must also be issued in accordance with the § 404(b)(1) Guidelines. Id. § 1344(e)(1); 40 C.F.R. §§ 230.1-.7. Under the Corps’ regulations, the Corps must also conduct a review of twenty public interest factors identified in the Corps’ regulations. 33 C.F.R. § 320.4. After issuance of the general permit by the Corps, however, individual projects that comply with the terms of the general permit may proceed without further action by the Corps or public notice. 40 C.F.R. § 230.5. Nationwide permits (which are one type of general permits) generally expire after five years. 33 C.F.R. § 330.6(b).

When issuing a nationwide permit, the Corps must also comply with the terms of NEPA. NEPA requires federal agencies to consider the environmental consequences of their actions and to allow public participation in the decision-making process. Unlike CWA, NEPA does not mandate particular substantive results such as a finding of minimal adverse impacts, but rather requires federal agencies to take a “hard look” at the environmental consequences of an action and to “disseminat[e] ... relevant environmental information for public comment so that the general public may be an active participant in the decisionmaking process.” OVEC Huntington, 479 F.Supp.2d at 625. Towards those ends, NEPA requires federal agencies to prepare environmental impact statements (“EIS”) for actions that will have a significant impact on the environment. 42 U.S.C. § 4332(2)(C).

To determine whether an action will have a significant environmental impact and thus require an EIS, an agency first decides whether the action is one that normally does require an EIS, or is categorically excluded from requiring an EIS. 40 C.F.R. § 1501.4(a). If the agency cannot readily determine whether an action will significantly affect the environment, then it must prepare an environmental assessment (“EA”) that discusses the proposed action, alternatives, and the environmental impacts of the proposed action and its alternatives. 40 C.F.R. §§ 1501.4, 1508.9. An EA is a “concise public document” that “provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS] or finding of no significant impact.” 40 C.F.R. § 1508.9(a). The EA must address the direct, indirect, and cumulative impacts of the proposed action. Id. § 1508.9(b); see also 40 C.F.R. §§ 1508.7, 1508.8, 1508.9. If the EA reveals that the project will have a significant effect on the quality of the human environment, then the Corps must prepare a detailed, written EIS. 42 U.S.C § 4332(2)(C). If the Corps determines that its proposed action will not have a significant effect on the environment, then it need not prepare an EIS but may instead issue a Finding of No Significant Impact (“FONSI”). 40 C.F.R. §§ 1508.4, 1508.13. “An agency’s decision to issue a FONSI and not prepare an EIS is a factual determination.” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004) (quoting Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002)). A FONSI must be supported by a statement of reasoning and *871 evidence. 40 C.F.R. § 1508.13. This NEPA process serves to “prevent uninformed agency action.” OVEC Huntington, 479 F.Supp.2d at 625; see also 42 U.S.C. § 4332(2)(C).

B. Nationwide Permit 21

NWP 21, the nationwide permit at issue in this case, permits:

Discharges of dredged or fill materials into waters of the United States associated with surface coal mining and reclamations operations provided the activities are already authorized, or are currently being processed as part of an integrated permit processing procedure, by the Department of Interior (DOI), Office of Surface Mining (OSM), or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977.

(Corps’ Mem. Opp’n OVEC’s Mot. Summ. J. Supplemental Compl., Ex. 1, Decision Document: Nationwide Permit 21 at 1.) 3 NWP 21 requires project proponents to file a pre-construction notification (“PCN”) with the Corps and receive written authorization from the Corps prior to the initiation of a project. Id. The permit is also subject to general conditions which apply to all nationwide permits. Id. Under NWP 21, the Corps’ district engineers consider each project on a case-by-ease basis, determine whether the terms and conditions of NWP 21 are met, and evaluate whether the project’s adverse environmental effects are both individually and cumulatively minimal. Final Notice, Reissuance of Nationwide Permits, 72 Fed. Reg. 11092, 11095 (March 12, 2007) (explaining PCN review process). If the district engineer determines that all the conditions of the permit are met and that the proposed project will not cause more than a minimal adverse effect on the aquatic environment, then the district engineer may authorize the project and associated fill.

C. Procedural History

The plaintiffs, a collection of environmental groups (hereinafter collectively referred to as “OVEC”), 4 brought this action challenging the Corps’ decision in the year 2002 to issue NWP 21 5 on the basis that the nationwide permit did not comply with the terms of CWA; that the Corps failed to comply with NEPA when issuing the permit; and that the Corps acted arbitrarily and capriciously in violation of the APA, 5 U.S.C. § 706(2)(A). (Am. Compl. ¶¶ 52-56.)

In my prior Memorandum Opinion and Order, granting OVEC’s first motion for summary judgment, I held that the Corps’ issuance of NWP 21 (2002) conflicted with the unambiguous meaning of § 404(e) of CWA. I found that “[s]ection 404(e) of the [CWA] authorizes the Corps to issue nationwide permits only for those activities determined before issuance to have minimal environmental impacts.” OVEC I, 410 F.Supp.2d at 453. Accordingly, I further found that NWP 21’s structure, which provides for authorizations based on a case-by-case, post hoc determination of minimal impacts for each proposed project, permitted an authorization procedure rather than a category of activities. I thus held that the Corps failed to permit a category of activities and make a pre-issuance minimal impacts determination as required by CWA. OVEC I, 410 F.Supp.2d at 467.

The Fourth Circuit Court of Appeals reversed and remanded, finding that the *872 Corps made the required minimal impact determinations prior to issuing NWP 21 (2002). Ohio Valley Envtl. Coal. v. Bulen (“OVEC II”), 429 F.3d 493, 505 (4th Cir. 2005). The Court of Appeals held that NWP 21 (2002) did not simply define a procedure but rather authorized a category of activities. Id. at 498. The Court of Appeals further held that the Corps may rely on post-issuance measures to “cement” its pre-issuance minimal impact determination, 6 but could not rely only upon post-issuance measures. 7 Id. at 501. Because the Corps had “undertaken] a good-faith, comprehensive, pre-issuance review of the anticipated environmental effects of the activities authorized by NWP 21 [ (2002) ]” in addition to its partial reliance on post-issuance procedures, the Court of Appeals found that the Corps had made a minimal impacts determination under CWA § 404(e). Id. at 502. The Court of Appeals left open, however, the question of whether the Corps’ minimal impact determination was arbitrary and capricious. In a footnote, the Court of Appeals stated:

It is of course open to the plaintiffs on remand to reassert their argument that the Corps’ minimal-impact determination was arbitrary and capricious because the Corps relied on erroneous premises or ignored relevant data (and we note that this argument concedes that there was a determination). We express no view on that matter. Our holding today is simply that the Corps did in fact make the determinations required by section 404(e).

Id. at 502 n. 6.

Following the Court of Appeals’ decision and remand, OVEC renewed its motion for Summary Judgment on its remaining claims. As noted by the Court of Appeals, the remaining claims were based on the Corps’ alleged arbitrary and capricious determination under NEPA and CWA with respect to NWP 21 (2002). OVEC asked the court to: declare NWP 21 (2002) to be unlawful under CWA, NEPA, and the APA; vacate it and set it aside; enjoin the Corps from issuing any further NWP 21 (2002) authorizations in this District; require the Corps to complete an EIS that complies with NEPA; and award costs and expenses. OVEC also requested that the court cancel any NWP 21 (2002) authorizations issued in this district between the time of the court’s prior injunction and the date that the injunction was lifted by the Court of Appeals.

Since the Court of Appeals’ decision and OVEC’s renewed motion for Summary Judgment, NWP 21 (2002) expired. On May 31, 2007,1 granted OVEC’s motion to file a Supplemental Complaint 8 challeng *873 ing the 2007 reauthorized version of NWP 21 (“NWP 21 (2007)”) [Docket 203]. 9 In its Supplemental Complaint, OVEC asserts many of the same challenges against NWP 21 (2007) that it asserted against NWP 21 (2002). OVEC requests that the court declare NWP 21 (2007) unlawful under CWA, NEPA, and the APA. Specifically, OVEC requests that this court find: (1) the Corps failed to respond to public comments regarding NWP 21 (2007) and effectively denied the public an opportunity for comment and review; (2) the Corps failed to comply with CWA § 404(e) and the § 404(b)(1) Guidelines because its determination that NWP 21 (2007) would have minimal individual and cumulative adverse impacts was arbitrary and capricious; (3) the Corps failed to consider impacts to the environment as a whole, in violation of CWA § 404(e); (4) the Corps’ decision not to place a limit on the filling of stream beds was arbitrary and capricious; and, (5) the Corps’ decision not to prepare an EIS was arbitrary and capricious because the Corps had not properly assessed the permit’s cumulative impacts. OVEC asks this court to vacate NWP 21 (2007) and remand the proceeding to the Corps; enjoin the Corps from approving any authorizations under NWP 21 (2007) in this District; enjoin the Corps from acting under NWP 21 (2007) until it completes an EIS; and award expenses and attorney’s fees.

II. Jurisdiction

The Corps and the Intervenors 10 have challenged the justiciability of OVEC’s claims. They first argue that OVEC’s challenge to NWP 21 (2002) is moot. The Intervenors further argue that OVEC’s challenge to NWP 21 (2007) is not ripe, and that OVEC lacks standing to challenge NWP 21 (2007). The Corps also asserts that some of OVEC’s claims are barred by the statute of limitations. Because a court must assure itself of jurisdiction before reaching the merits of a dispute, I will address these challenges first. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978).

A. OVEC’s Remaining NWP 21 (2002) Claims Are Moot

Article III of the Constitution limits the court’s jurisdiction to “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Consequently, “an actual controversy must exist at all stages of federal court proceedings.” Erwin Chemerinsky, Federal Jurisdiction § 2.5.1 (1994). The Supreme Court has described the mootness doctrine as “standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue through its existence (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). “A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 *874 L.Ed.2d 491 (1969). If a case is moot, a federal court cannot hear it. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

The mootness question in this case involves OVEC’s remaining claims to NWP 21 (2002) after the Fourth Circuit Court of Appeals’ decision in OVEC II. As I have discussed, those claims include challenges to the Corps’ minimal impacts determination under CWA and its insignificant cumulative impacts determination under NEPA. The Intervenors argue that OVEC’s facial challenge to NWP 21 (2002) is moot because the permit became “inoperable” and “null and void” on its expiration date, March 19, 2007. (Intervenor’s Supp. Br. 5 [Docket 175].) Because the Corps may not authorize any new activities after the date of expiration, they argue, there is nothing for the court to enjoin that would provide effective relief. (Id. at 5-6.) The Intervenors further argue that OVEC’s challenge to individual authorizations made under NWP 21 (2002) is also moot because none of the mining operations identified by OVEC as being authorized under NWP 21 (2002) currently continue the authorized activities or seek further authorization under NWP 21 (2007). (Id. at 6; Intervenor’s Resp. Opp’n OVEC’s Renewed Mot. Summ. J. 3 [Docket 163].)

OVEC argues that its CWA claims are not moot because activities authorized under NWP 21 (2002) that commenced prior to the expiration date may continue for a twelve-month extension period. (OVEC’s Supp. Mem. 1 [Docket 173].) As observed by OVEC, the Corps retains discretionary authority to “modify, suspend, or revoke NWP authorizations,” which includes the ability to impose “additional or revised terms or conditions on the authorization,” 33 C.F.R. § 330.4(e), throughout the life of the nationwide permit, a time period which extends to the five year permit period and the twelve-month extension. 11 OVEC further argues that its claims are not moot because several of the Corps’ authorizations under NWP 21 (2002) were conditioned on monitoring and mitigation plans that would continue for many years, even after the permit and its authorizations have expired. (Id. at 2.)

I FIND that because the twelvemonth extension period for NWP 21 (2002) ended on March 18, 2008, none of OVEC’s CWA claims present a “live controversy” with respect to NWP 21 (2002). The Corps can no longer authorize any activity under that permit and indeed no activities authorized by that permit continue to be or even can be in operation at this time because the twelve-month extension period has run. Moreover, I can provide no relief to OVEC pursuant to these claims. Incurrida v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007) (holding that a case becomes moot when an event occurs during the pendency of a case such that the court could not grant effectual relief to the prevailing party). Though OVEC argues that a ruling in their favor “may lead the Corps to require increased stream mitigation,” *875 (OVEC’s Supp. Mem. 8), such relief is by-no means certain, and I do not have the authority to order additional mitigation. If a court finds that the agency’s decision was arbitrary and capricious, then the court’s power “is limited to vacating the unlawful agency action and remanding the matter to the agency for further proceedings, or compelling agency action that has been unlawfully withheld or unreasonably delayed.” Sierra Club v. U.S. EPA, 162 F.Supp.2d 406, 411 (D.Md.2001) (citing NRDC v. Fox, 93 F.Supp.2d 531 (S.D.N.Y.2000)). Therefore, OVEC’s NWP 21 (2002) claims are moot unless an exception applies.

A well-established exception to mootness exists in cases where “the challenged conduct is capable of repetition but evades review.” Kentuckians for Commonwealth, Inc. v. Rivenburgh (“Rivenburgh II”), 269 F.Supp.2d 710, 713 (S.D.W.Va.2003) (citing Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); S. Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). This exception applies if: “(1) the challenged action is too short in duration to be fully litigated before the case will become moot; and (2) there also is a reasonable expectation that the complaining party will be subjected to the same action again.” Id. (citing Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). There is no “mechanical” or “fixed” test to determine whether an activity is of such short duration that it will evade judicial review. Nat’l Wildlife Fed. v. Costle, 629 F.2d 118, 123 n. 19 (D.C.Cir.1980).

The challenged action in this case, the issuance of NWP 21 (2002) and the authorizations under that permit, remained justiciable for the five-year life plus twelvemonth extension of the permit. See Rivenburgh, 269 F.Supp.2d at 715. Though other courts have found that the lifetime of a nationwide permit is sufficient for judicial review, see Rivenburgh II, 269 F.Supp.2d at 715; see also Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 264 Fed.Appx. 10, 12 (D.C.Cir.2008), the fact that this litigation has continued for almost six years suggests that the duration of the challenged activities is too short to be fully litigated before the case becomes moot.

I need not resolve the question of duration, however, because OVEC has not shown that it reasonably will be subject to the same action again. OVEC argues that the Corps, by reissuing NWP 21 in March 2007, has shown that OVEC not only will likely be subject to the “same action” again, but in fact have actually been subjected to the same action. (OVEC’s Supp. Br. 4.) According to OVEC, the Corps’ decision to issue NWP 21 (2007) “contains the same infirmities as its 2002 decision.” Id. Though OVEC raises several of the same challenges against the Corps’ decision to issue NWP 21 (2007) as they did with respect to NWP 21 (2002), the new permit is based on an entirely different administrative record. Actions based on a unique record cannot properly be repetitive. Therefore, this action does not fall -within the exception and I FIND that OVEC’s CWA claims with respect to NWP 21 (2002) are MOOT.

Moreover, I FIND that OVEC’s NEPA claim with respect to NWP 21 (2002) is MOOT. “[A] request for injunctive relief is moot when the event sought to be enjoined has occurred.” Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 396 (5th Cir.2000). In this claim, OVEC seeks to enjoin NWP 21 (2002) until OVEC completes an EIS for that permit. NWP 21 (2002), however, has already expired. Because NEPA requires agencies to prospectively evaluate the effect their actions will have on the *876 environment, it would frustrate the purposes of NEPA to allow “after-the-fact critical evaluation” subsequent to the termination of the action. Id. (quoting Richland Park Homeowners Ass’n v. Pierce, 671 F.2d 935, 940 (5th Cir.1982)). Accordingly, I FIND that OVEC’s NEPA challenge to NWP 21 (2002) is MOOT.

B. OVEC Has Standing to Assert Its NWP 21 (2007) Claims

The Intervenors also argue that OVEC lacks standing to challenge NWP 21 (2007). I FIND that OVEC has standing to challenge the issuance of NWP 21 (2007) because its members “visit, live near, recreate near, drive by and/or fly over areas of the state that are visibly harmed by valley fills, surface impoundments, and related surface mining activities.” OVEC I, 410 F.Supp.2d at 464. In my prior opinion, I held that OVEC had standing because (1) its members suffered an injury in fact, which was both (a) concrete and particularized since “coal refuse will be discharged into waters pursuant to specific authorizations” and (b) actual and imminent since the Corps had issued specific authorizations under NWP 21 (2002), as a result of the issuance of NWP 21 (2002); (2) “the injury was fairly traceable to the challenged action of the defendant”; and (3) “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” OVEC I, 410 F.Supp.2d at 464.

The only difference in those findings with respect to the new NWP 21 (2007) claims is that at the time OVEC filed the 2007 claims, no authorizations had occurred under NWP 21 (2007). Nevertheless, I FIND OVEC’s alleged injuries with respect to NWP 21 (2007) are still actual and imminent. An injury can be actual and imminent without specific authorizations under the challenged permit. See La. Envtl. Action Network v. EPA 172 F.3d 65, 67-68 (D.C.Cir.1999) (finding an actual and imminent injury where it is “all but certain that remediation activities will continue” and therefore it “creates a very ‘substantial probability’ that some [of the challenged] variances will be granted” by the EPA) (emphasis in original). “The organization need not prove the merits of its case — ie., that localized harm has in fact resulted from a federal rulemaking— in order to establish its standing, but it must demonstrate that there is a substantial probability that local conditions will be adversely affected and thereby injure a member of the organization.” Sierra Club v. EPA 292 F.3d 895, 898 (D.C.Cir.2002) (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000); La. Envtl. Action Network, 172 F.3d at 68) (internal quotations omitted). NWP 21 (2007) became effective on March 19, 2007, and it is estimated that 217 individual authorizations are issued annually under the permit. 2007 Decision Document 21. Furthermore, Keystone Industries LLC d/b/a Keystone Development LLC applied for a site specific permit in Kanawha County, West Virginia under NWP 21 (2007). (OVEC’s Exs. Supp. Mot. Summ. J. Supplemental Compl., Ex. 1) This clearly shows that there is a substantial probability that local conditions will be adversely affected and therefore OVEC will suffer an actual injury.

In addition, my determination of harm is influenced by the fact that the Corps is not required to provide the public, including OVEC, with notice of a particular permit authorization or an opportunity to challenge it. Instead, upon receipt of the authorization, permittees can immediately begin discharging dredged and fill materials without OVEC’s knowledge. As I noted in OVEC I, the harm caused by the issuance of NWP 21 is immediate, irreversible, and difficult to monitor. See OVEC I, 410 F.Supp.2d at 461. In fact, I observed first hand the swiftness with *877 which a permittee can proceed upon receiving an authorization from the Corps. In this very case, OVEC filed a motion for a Temporary Restraining Order attempting to halt an NWP 21 authorization allowing the discharge of over forty-nine cubic yards of dredged and/or fill material into approximately 10,899 linear feet of United States waters associated with a surface coal mining operation. (OVEC’s Mot. TRO & Prelim. Inj. 1 [Docket 176].) That motion, however, was rendered moot before I could rule on the matter because the permittee had already filled the stream. (OVEC’s Mot. Withdraw Mot. Prelim. Inj. [Docket 201].) These facts plainly show that the alleged injury is imminent. Accordingly, I FIND that OVEC has suffered an injury in fact that is actual and imminent, not conjectural or hypothetical, and therefore it has standing in this matter.

C. OVEC’s NWP 21 (2007) Claims Are Ripe

The Intervenors further argue that OVEC’s CWA challenges to NWP 21 (2007) are not ripe for judicial review. In my prior opinion, I found OVEC’s similar challenge to NWP 21 (2002) was ripe. The only difference in this case is that the record does not reflect that any individual projects have received authorization under NWP 21 (2007). 12 This does not render OVEC’s claims premature because upon issuance, NWP 21 (2007) was a final agency action which immediately altered the rights of OVEC and cause an immediate injury.

The Supreme Court in Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), set out a three-factor test for analyzing ripeness in the context of agency action. Pursuant to that test, a court must consider “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development.” Ohio Forestry, 523 U.S. at 733, 118 S.Ct. 1665.

As discussed above, the injury to OVEC is imminent because, I have found, OVEC has no opportunity to challenge individual authorizations once the permit has been issued. Thus, not considering OVEC’s facial challenge to NWP 21 (2007) would cause OVEC hardship, satisfying the first Ohio Forestry requirement. 13 As for the *878 second Ohio Forestry factor, the Corps’ administrative process is complete upon issuance of the nationwide permit. Though the Corps will authorize individual projects at a later time, such authorizations are an implementation of the permit and does not result in the refinement or amendment of the permit. Unlike actions under the Forest Plan in Ohio Forestry, NWP 21 authorizations are not subject to administrative appeal. See 72 Fed. Reg. at 11100 (“We do not believe it would be appropriate or necessary to establish an administrative appeal process for the NWP program, since the NWPs authorize only those activities that have minimal individual and cumulative adverse effects on the aquatic environment.”). This is, therefore, the only opportunity for judicial review of NWP 21.

As to the third factor, no further development of the issues presented is required because “[wjhile the details of specific NWP 21 projects can be elaborate, the substance of NWP 21 is simple. Whether it complies with the Clean Water Act is a purely legal question that courts are well-equipped to consider.” OVEC I, 410 F.Supp.2d at 462. Similarly, whether it complies with NEPA and the APA are pure questions of law. Accordingly, I FIND that OVEC’s challenge to NWP 21 (2007) is ripe for review.

D. OVEC’s NWP 21 (2007) Claims Are Not Barred By The Statute of Limitations

Finally, the Corps argues that OVEC, by challenging the Corps’ reliance on compensatory mitigation in making its NWP 21 (2007) minimal impacts determination, is actually challenging